Should an unrepresented accused enter into plea and sentence agreements?

April 1st, 2021

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A plea is a statement by an accused person tendered in court in response to a charge instituted by the prosecuting authority. Section 105A of the Criminal Procedure Act 51 of 1977 relating to plea and sentence agreements was first statutorily introduced in South Africa (SA) in 2001 – the procedure was informal prior to 2001. Section 105A permits an accused person who has legal representation to enter into a plea – a plea of guilty, coupled with a sentence agreement. Section 105A(1) prohibits an unrepresented accused from entering into a plea and sentence agreement with the prosecuting authority. In this article I will explore the constitutional impediments contained in s 105A of the Criminal Procedure Act mainly with reference to self-represented accused.

The introduction of s 105A in our criminal system

The South African Law Reform Commission Act 19 of 1973 established a report on the Simplification of Criminal Procedure: Sentence Agreements in 2002, which recommended the introduction of s 106A on plea discussions and plea agreements. The report did not require an accused to be legally represented. In subs 1 of the first draft, the prosecutor and the accused or their legal representative were allowed to hold discussions with a view of reaching an agreement in respect of plea proceedings and the disposal of the case. The Commission clearly was of the opinion that the unrepresented accused should be given the opportunity to participate in plea agreements and negotiations with the state.

In November 2001, in Hansards on Session III of the First Parliament, the then Minister of Justice and Constitutional Development, provided reasons that addressed the exclusion of unrepresented accused from plea and sentence agreements. Among those reasons was that the exclusion saved the unrepresented accused from the imbalance in the negotiating process between the accused and the prosecutor (A Botman ‘An evaluation of the benefit of plea and sentence agreements to an unrepresented accused’ (LLM thesis, University of Western Cape, 2016) at 40), and that the exclusion was used to protect the integrity of plea and sentence agreements and to avoid unnecessary litigation (Botman (op cit) at 40). To a certain extent, this was a correct analysis. An unrepresented accused faces more danger if legally unrepresented, but without testing the law first and setting necessary guidelines it was simply premature to perceive the outcome.

Essential features of s 105A of the Criminal Procedure Act

Firstly, any plea entered into by an accused should be tendered freely and voluntarily (see s 105A(6)(a)(ii)). In Brady v US 397 US 742 (1970), it was held on p 397 that ‘the plea is more than an admission of past conduct; it is the defendant’s [accused’s] consent that judgment of conviction may be entered without a trial – a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary, but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’

The following are the general features that make up s 105A:

  • Section 105A(1) of the Criminal Procedure Act encapsulates the functions of a prosecutor during s 105A proceedings, providing that a prosecutor authorised in writing by the National Director of Public Prosecutions, and an accused who is legally represented may before the accused pleads to the charge brought against them, negotiate and enter into an agreement with the prosecuting authority.
  • Section 105A(2) states that an accused must be informed of their rights during the proceedings and further lists other formalities to be adhered to.
  • Section 105A(3) prohibits judicial participation during s 105A negotiations.
  • Section 105A(4) and (5) prescribes compliance with subs (1)(b)(i) and (iii), which states that a ‘prosecutor may enter into an agreement … after consultation with the person charged with the investigation of the case’ and ‘after affording the complainant or [their] representative … the opportunity to make representations to the prosecutor’.
  • Section 105A(6) stipulates an inquiry the court needs to conduct before recording a s 105A plea of not guilty.
  • Section 105A(7) to (9) relates to the adjudication and consideration of the sentence agreement by the court.
  • Section 105A(10) contemplates the nullity of the s 105A agreement and the commencement of a trial de novo.
Constitutional considerations – the right to self-representation

Essentially plea and sentence agreements are used to avoid lengthy criminal trials and uncertain outcomes. However, the procedure can deeply affect constitutionally guaranteed rights of an unrepresented accused.

The right to self-representation

According to s 105A only a legally represented accused person may enter into a plea and sentence agreement. The section explicitly excludes accused persons who may willingly choose to represent themselves.

The constitutionality of self-representation of an accused person was first introduced in the United States in the case of Faretta v California 422 US 806 (1975), whereby it was stated that a defendant in a state criminal trial has an independent constitutional right of self-representation and that they may proceed to defend themselves without counsel when they voluntarily and intelligently elect to do so. In this case, the courts erred in forcing an accused against his will to accept a state-appointed public defender and in denying his request to conduct his own defence.

Similarly, in the case of S v Wildridge 2019 (1) SACR 474 (ECG), the appellant was convicted of negligent driving. He was sentenced to a fine of R 2 000 or six months’ imprisonment suspended for four years. He appealed against his conviction on the basis that the trial had been unfair by representing himself. A feature that rendered the trial unfair was the hostility and impatience displayed by the magistrate towards the appellant. When the appellant in the case was cross-examined by the prosecutor, the magistrate allowed the prosecutor to interrupt the appellant repeatedly so that he was prevented from replying to questions properly and fully. Essentially, what rendered the trial unfair was the magistrate’s unwillingness to assist the appellant. Plasket J in Wildridge at para 6 with reference to Rex v Hepworth 1928 AD 265 at 277, held that ‘a presiding officer is not a mere umpire. He or she is “an administrator of justice” whose duty is not only “to direct and control proceedings according to recognised rules of procedure but to see that justice is done”’.

So, is self-representation in s 105A proceedings with the aid of a presiding officer even possible? There are dangers to it. Procedural rights of the accused are typically better protected when the prosecution has a legally educated counterpart (M Kerscher ‘Plea bargaining in South Africa and Germany’ (LLM thesis, Stellenbosch University, 2013) at 114). This eliminates the danger of procedural abuse towards an uninformed accused who knows nothing of the process and as a result the abuse is diminished. However, the provision seems quite indecisive since the unrepresented accused is able to plead guilty in terms of s 112 of the Criminal Procedure Act and can also be sentenced without the assistance of a representative (S v Wessels (FB) (unreported case no 62/2019, 23-5-2019) ((Moeng AJ) Loubser J concurring)).

To aid this the court can make a similar inquiry to that used in Faretta v California – a judge must allow self-representation if a defendant is competent to understand and participate in the court proceedings. To determine competency, the judge often weighs factors, such as the –

  • defendant’s age;
  • defendant’s level of education; and
  • seriousness of the crime with which the defendant is charged.

Judicial approval of a s 105A agreement is extensive enough for an unrepresented accused to participate in s 105A proceedings – taking into account s 105A(6)(a) and (b) (the judicial inquiry). Once the contents of the agreement have been disclosed, the court must question the accused to ascertain whether they confirm the terms of the agreement, as well as the admissions made by them in the agreement (s 105A(6)(a)(i)). An inquiry by the court into whether an accused person understands the contents of the agreement can aid an unrepresented accused in several ways. Firstly, it can iron out any misinformation the accused might have been fed and secondly, it can clearly outline the charges against the accused present in a way that they can comprehend with sufficient clarity.

The court must also question the accused to ascertain whether the agreement was entered into freely and voluntarily, in sound and sober senses and without having been unduly influenced (s 105A (6)(a)(ii)). In S v Taylor 2006 (1) SACR 51 (C) at para 19 Yekiso J noted that the court, ‘could go further to confirm with the accused that the latter’s signature on the agreement and that of his legal representative … and also confirm with the accused the sentence proposed and any condition attached thereto’.

The aforementioned considerations should be revisited as constitutional provisions reign over the system of criminal procedure. These provisions are the most important sources of criminal procedure rules and thus have to be obeyed (Geldenhuys, Joubert, Swanepoel, Terblanche and Van der Merwe 11ed Criminal Procedure Handbook (Cape Town: Juta 2014) at 25).


In any system of law, it is imperative to apply constitutional values and principles. This adherence will ensure more South Africans benefit lawfully from s 105A proceedings and that it is not only left for the selected few.

Nomonde Msimanga LLB (NWU) is a legal practitioner at Saleem Ebrahim Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2021 (April) DR 12.

De Rebus